The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

An investigation of the impacts of Excellence in Research for Australia : a case study on accounting for research

This is the first study to explore the way Excellence in Research for Australia (ERA), a research assessment exercise introduced in the Australian higher education sector in 2010, fostered the development of strategically oriented Management Accounting technologies in the form of Performance Management Systems (PMS) to achieve research excellence within an Australian university. It identifies ERA's intended and unintended consequences. While ERA enabled the creation of tighter controls in the PMS of faculties, departments and individual academics within the university, enhancing its reported research performance, the impact on academics was low job satisfaction, increased workload and a higher focus on research than teaching.

Structured contract strategies for capital and operations expenditure projects in the oil and gas industry

This project was a step forward in developing a 'descriptive theory' of contracting in the oil and gas industry that reflects the operating environment in which the project manager operates. This study investigates the existing processes and methods used in establishing contracts which are very often prescriptive, and not always appropriate or optimal for a given situation. This study contributes to contracting effectiveness or optimal contracting in the oil and gas industry.

The making of control : an ethnomethodology of choosing management accounting systems [La fabrique du controle : une ethnomethodologie du choix des outils de gestion]

This paper sets out to contribute to the literature on the design and the implementation of management control systems. To this end, we question what is discussed when a management control system is to be chosen and on what decision-making eventually rests. This study rests upon an ethnomethodology of the Salvation Army’s French branch. Operating in the dual capacity of a researcher and a counsellor to management, between 2000 and 2007, we have unrestricted access to internal data revealing the backstage of management control: discussions and interactions surrounding the choosing of control devices. We contribute to understanding the arising of a need for control, the steps and process followed to decide upon a management control system, and controls in nonprofits. [Cet article vise à contribuer à la littérature sur la mise en place des systèmes de contrôle de gestion. À cette fin, nous questionnons ce qui est discuté lors du choix d’un système de contrôle et sur quoi repose in fine la décision. Cet article est fondé sur une approche ethnométhodologique de l’Armée du Salut en France permise par notre double qualité de chercheurs mais également de conseiller auprès de la direction de l’organisation entre 2000 et 2007. Un accès illimité à des données internes nous permet ainsi de mettre en lumière les aspects méconnus et invisibles du contrôle de gestion : les discussions et interactions entourant le choix d’outils. Nous contribuons à la compréhension de l’émergence du besoin de contrôle, des étapes et du processus de choix d’outils et enfin du contrôle de gestion dans une organisation à but non lucratif.]

Curse or cure? Revisiting state, capital and resources

WA’s experience, as portrayed in this volume, not only highlights the changeable nature of the mining industry, the volatility of global commodity markets and the impact of global capital on people and place, it also draws into question the promise of lasting value derived from resource development as currently practiced. It is in this context that Chapter 18 revisits WA's resource boom and assesses the sustainability of resource-led development in the state, to arrive at an answer to the question of ‘curse or cure?’. Opening up the discourse beyond the dominant developmentalist narrative invites discussion on new perspectives of economic sustainability that include well-being, equity and the protection of people, culture and place.

Defining and Accounting for Fundraising Income and Expenses

Charities' fundraising financial transactions should be reported in the interests of accountability, and the report should be publicly available. However, research shows that at present there is little consistency in how fundraising is defined or in how such transactions are reported, and little guidance from accounting standards. This report examines whether the current reporting of fundraising in annual financial statements by Australian charities is fit for the purposes of informing the donating public and other stakeholders, whether through the Australian Charities and Not-for-profits Commission’s registry strategy or through other means such as private ratings agencies. The authors endeavour to suggest a way forward if it is not.

Defining and Accounting for Fundraising Income and Expenses : Executive Summary : ACPNS Current issues Information Sheet 2014/2

Executive summary of Report examining definitions of fundraising and formal Australian accounting standards to ascertain their impact on reporting fundraising transactions by not-for-profit entities.

Examining corporate governance disclosures of listed companies in Fiji

In 2009, the Capital Markets Development Authority (CMDA) - Fiji’s capital market regulator - introduced the Code of Corporate Governance (the Code). The Code is ‘principle-based’ and requires companies listed on the South Pacific Stock Exchange (SPSE) and the financial intermediaries to disclose their compliance with the Code’s principles. While compliance with the Code is mandatory, the nature and extent of disclosure is at the discretion of the complying entities. Agency theory and signalling theory suggest that firms with higher expected levels of agency costs will provide greater levels of voluntary disclosures as signals of strong corporate governance. Thus, the study seeks to test these theories by examining the heterogeneity of corporate governance disclosures by firms listed on SPSE, and determining the characteristics of firms that provide similar levels of disclosures. We conducted a content analysis of corporate governance disclosures on the annual reports of firms from 2008-2012. The study finds that large, non-family owned firms with high levels of shareholder dispersion provide greater quantity and higher quality corporate governance disclosures. For firms that are relatively smaller, family owned and have low levels of shareholder dispersion, the quantity and quality of corporate governance disclosures are much lower. Some of these firms provide boilerplate disclosures with minimal changes in the following years. These findings support the propositions of agency and signalling theory, which suggest that firms with higher separation between agents and principals will provide more voluntary disclosures to reduce expected agency costs transfers. Semi-structured interviews conducted with key stakeholders further reinforce the findings. The interviews also reveal that complying entities positively perceive the introduction of the Code. Furthermore, while compliance with Code brought about additional costs, they believed that most of these costs were minimal and one-off, and the benefits of greater corporate disclosure to improve user decision making outweighed the costs. The study contributes to the literature as it provides insight into the experience of a small capital market with introducing a ‘principle-based’ Code that attempts to encourage corporate governance practices through enhanced disclosure. The study also assists policy makers better understand complying entities’ motivations for compliance and the extent of compliance.

Capital cost model for Robert evaporators

ROBERT EVAPORATORS in Australian sugar factories are traditionally constructed with 44.45 mm outside diameter stainless steel tubes of ~2 m length for all stages of evaporation. There are a few vessels with longer tubes (up to 2.8 m) and smaller and larger diameters (38.1 and 50.8 mm). Queensland University of Technology is undertaking a study to investigate the heat transfer performance of tubes of different lengths and diameters for the whole range of process conditions typically encountered in the evaporator set. Incorporation of these results into practical evaporator designs requires an understanding of the cost implications for constructing evaporator vessels with calandrias having tubes of different dimensions. Cost savings are expected for tubes of smaller diameter and longer length in terms of material, labour and installation costs in the factory. However these savings must be considered in terms of the heat transfer area requirements for the evaporation duty, which will likely be a function of the tube dimensions. In this paper a capital cost model is described which provides a relative cost of constructing and installing Robert evaporators of the same heating surface area but with different tube dimensions. Evaporators of 2000, 3000, 4000 and 5000 m2 are investigated. This model will be used in conjunction with the heat transfer efficiency data (when available) to determine the optimum tube dimensions for a new evaporator at a specified evaporation duty. Consideration is also given to other factors such as juice residence time (and implications for sucrose degradation and control) and droplet de-entrainment in evaporators of different tube dimensions.

Aligning off-balance sheet risk, on-balance sheet risk and audit fees: a PLS path modelling analysis

This study focuses on using the partial least squares (PLS) path modelling technique in archival auditing research by replicating the data and research questions from prior bank audit fee studies. PLS path modelling allows for inter-correlations among audit fee determinants by establishing latent constructs and multiple relationship paths in one simultaneous PLS path model. Endogeneity concerns about auditor choice can also be addressed with PLS path modelling. With a sample of US bank holding companies for the period 2003-2009, we examine the associations among on-balance sheet financial risks, off-balance sheet risks and audit fees, and also address the pervasive client size effect, and the effect of the self-selection of auditors. The results endorse the dominating effect of size on audit fees, both directly and indirectly via its impacts on other audit fee determinants. By simultaneously considering the self-selection of auditors, we still find audit fee premiums on Big N auditors, which is the second important factor on audit fee determination. On-balance-sheet financial risk measures in terms of capital adequacy, loan composition, earnings and asset quality performance have positive impacts on audit fees. After allowing for the positive influence of on-balance sheet financial risks and entity size on off-balance sheet risk, the off-balance sheet risk measure, SECRISK, is still positively associated with bank audit fees, both before and after the onset of the financial crisis. The consistent results from this study compared with prior literature provide supporting evidence and enhance confidence on the application of this new research technique in archival accounting studies.

Aligning off-balance sheet risk, on-balance sheet risk and audit fees: a PLS path modelling analysis

This study focuses on using the partial least squares (PLS) path modelling methodology in archival auditing research by replicating the data and research questions from prior bank audit fee studies. PLS path modelling allows for inter-correlations among audit fee determinants by establishing latent constructs and multiple relationship paths in one simultaneous PLS path model. Endogeneity concerns about auditor choice can also be addressed with PLS path modelling. With a sample of US bank holding companies for the period 2003-2009, we examine the associations among on-balance sheet financial risks, off-balance sheet risks and audit fees, and also address the pervasive client size effect, and the effect of the self-selection of auditors. The results endorse the dominating effect of size on audit fees, both directly and indirectly via its impacts on other audit fee determinants. By simultaneously considering the self-selection of auditors, we still find audit fee premiums on Big N auditors, which is the second important factor on audit fee determination. On-balance-sheet financial risk measures in terms of capital adequacy, loan composition, earnings and asset quality performance have positive impacts on audit fees. After allowing for the positive influence of on-balance sheet financial risks and entity size on off-balance sheet risk, the off-balance sheet risk measure, SECRISK, is still positively associated with bank audit fees, both before and after the onset of the financial crisis. The consistent results from this study compared with prior literature provide supporting evidence and enhance confidence on the application of this new research technique in archival accounting studies.

The outsourcing of accounting services and the subsequent accounting education implications

This paper examines the outsourcing of accounting services by Australian accounting firms. It considers what, if any, impact the outsourcing of accounting services may have on accounting graduates if entry level tasks normally completed by graduates are sent to offshore processing centres. This paper categorises the most important prerequisite skills requirements of new junior employees identified by accounting firms in Australia.

Corporate sustainability reporting for water : water footprint, global reporting initiative and the water accounting framework

Three initiatives with respect to water reporting in the mining sector are compared in this paper to understand the quantities that are asked for by each initiative and the guidelines of those initiatives through means of a case study. The Global Reporting Initiative (GRI) was chosen because it has achieved widespread acceptance amongst mining companies and its water-related indicators are widely reported in corporate sustainability reporting. In contrast, the Water Footprint Network, which has been an important initiative in food and agricultural industries, has had low acceptance in the mining industry. The third initiative is the Water Accounting Framework, a collaboration between The Minerals Council of Australia and the Sustainable Minerals Institute of the University of Queensland. A water account had previously been created according to the Water Accounting Framework for the case study site, an open pit coal mine in the Bowen Basin. The resulting account provided consistent data for the Global Reporting Initiative (GRI) and the Water Footprint attributable to mining but in particular, a deficiency in the GRI indicator of EN10 reuse and recycling efficiency was illustrated quantitatively. This has far-reaching significance due to the widespread use of GRI indicators in mining corporate reports.

A robust methodological approach for mine site water accounting

Over the past decade, the mining industry has come to recognise the importance of water both to itself and to others. Water accounting is a formalisation of this importance that quantifies and communicates how water is used by individual sites and the industry as a whole. While there are a number of different accounting frameworks that could be used within the industry, the Minerals Council of Australia’s (MCA) Water Accounting Framework (WAF) is an industry-led approach that provides a consistent representation of mine site water interactions regardless of their operational, social or environmental context that allows for valid comparisons between sites and companies. The WAF contains definitions of offsite water sources and destinations and onsite water use, a methodology for applying the definitions and a set of metrics to measure site performance. The WAF is comprised of two models: the Input-Output Model, which represents the interactions between sites and their surrounding community and the Operational Model, which represents onsite water interactions. Members of the MCA have recently adopted the WAF’s Input-Output Model to report on their external water interactions in their Australian operations with some adopting it on a global basis. To support this adoption, there is a need for companies to better understand how to implement the WAF in their own operations. Developing a water account is non-trivial, particularly for sites unfamiliar with the WAF or for sites with the need to represent unusual features. This work describes how to build a water account for a given site using the Input-Output Model with an emphasis on how to represent challenging situations.